The only pretext a SWAT team needs to temporarily seize your property is to use it as an observation post in an emergency situation, a federal judge in Nevada has ruled.
Police even have the right to smash down your door with a battering ram without a warrant and shoot you with pepper balls in order to take over your property, US District Court Judge Andrew Gordon concluded in a case called Anthony Mitchell v. City of Henderson. Mitchell and his parents sued the city of Henderson, a Las Vegas suburb, because of events on July 10, 2013.
The Mitchells’ attorneys argued the events violated their clients’ First, Third and Fourth Amendment rights. The Third Amendment makes it illegal for the government to seize private homes for use as quarters for soldiers and has rarely been the focus of a federal case. The attorneys contended that the Third Amendment applies to police as well as the military.
Does the Third Amendment Apply to SWAT teams?
Gordon dismissed the case.
“The relevant questions are thus whether municipal police should be considered soldiers, and whether the time they spent in the house could be considered quartering,” he wrote. “To both questions, the answer must be no.”
Judge Gordon’s description of events as described by Mitchell and his parents, Michael and Linda, makes for some very disturbing reading. None of the Mitchells was suspected of a crime. Instead, police simply wanted to take over their homes to use as observation posts to watch a neighbor who was barricaded inside his house and who was refusing to leave. Police were investigating a domestic complaint against the neighbor.
Without a Warrant
“The officers then knocked down Anthony’s door with a metal ram and entered his house, without a warrant or Anthony’s permission,” Judge Gordon wrote in his opinion. “They pointed their guns at Anthony and ordered him to the floor. The officers, including Officer Snyder, addressed Anthony as ‘a–hole’ and ordered him to crawl toward them and shut his phone off. Anthony stayed huddled on the floor with his hands over his face.”
Mitchell had refused to comply with the SWAT team’s request because he did not like the way the police were behaving.
“Doe Officers 1-10 pointed firearms at the Plaintiffs through their windows and at the homes of several neighbors,” Gordon wrote. “When Michael photographed Doe Officer 1 — a member of the NLVPD SWAT team — through a window of Michael’s home, that officer pointed his firearm at Michael.”
The officers are called Doe because they are not identified in the complaint. NLVPD refers to the North Las Vegas Police Department.
“Doe Officers 1-10 … then shot Anthony with ‘pepperball’ rounds at close range,” Gordon wrote. A pepperball is a non-lethal projectile made from chili pepper that some law enforcement agencies use. “The officers also shot Anthony’s dog Sam, who had been cowering in the corner of the room, with at least one ‘pepperball’ round. Sam panicked, howled in pain, and fled from the house. He ended up trapped in a fenced alcove in the backyard without food or water for nearly the entire day in 100-degree heat.”
Parents’ Home Seized, Too
After taking over Anthony Mitchell’s house, the SWAT team decided to occupy his parents’ home next door as well.
“Approximately 30 minutes later, Doe Officers 21-30 entered the Parents’ backyard, again without a warrant or permission,” Gordon wrote. “The officers knocked on the back door and demanded that Linda open the door. Linda complied, but told them that they could not enter without a warrant. The officers ignored her, entered through the back door, and began searching the home. Doe Officer 21 (a female) forcibly grabbed Linda, began to pull her out of the house, seized her purse and ‘began rummaging through it’ without consent.”
Does the Third Amendment Apply to SWAT teams
Anthony and Michael Mitchell were arrested on charges of obstructing an officer and held in jail for the night. The charges against them were later dropped.
“If the Mitchells’ story is true (the police obviously have their own version of events), it is clear that the officers engaged in illegal and deeply troubling abuses of power against innocent civilians – regardless of whether their actions violated the Third Amendment or not,” George Mason University Law Professor Illya Somin wrote in a Washington Post op-ed piece.
The case has important Constitutional implications because there are few court rulings on the Third Amendment and the protections it provides, Somin wrote. The Third Amendment is rarely invoked because of the protection against unreasonable search and seizure provided by the Fourth Amendment.
Somin believes the Mitchells had a solid legal case.
“When the Amendment was enacted in 1791, there were virtually no professional police of the sort we have today,” Somin wrote. “The distinction between military and law enforcement officials was far less clear than in the world of 2015. Moreover, many parts of the Bill of Rights were in part inspired by abuses committed by British troops attempting to enforce various unpopular laws enacted by Parliament.”
Another complicating factor, Somin wrote, is the militarization of police forces.
“If a state or local government decides to quarter a SWAT team in a private home, it is not clear whether that is meaningfully different from placing a National Guard unit there,” Somin wrote. “In sum, Judge Gordon may well be right that the officers involved in this case are not plausibly considered soldiers under the Third Amendment. But he is too quick to conclude that no “municipal police officer” could ever qualify as such.”
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